Whistleblowing in healthcare

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Although healthcare workers have a responsibility to raise
concerns about patient safety and unethical or illegal conduct, if they do so
they are often treated badly.

Healthcare workers have a
responsibility to raise concerns about patient safety and unethical or illegal
conduct. Yet those who raise serious concerns are often treated badly by senior
colleagues, their employing organisations and the bodies that should protect
whistleblowers. This paradox is because whistleblowers raise concerns that, if
made public, would embarrass the organisation or senior and powerful
individuals, who are considered less dispensable than the whistleblower.
Repeatedly we hear of scandals in healthcare, where whistleblowers were ignored
or lost their jobs for raising concerns, but those responsible for both the
scandal and its cover-up are promoted to more senior positions in the UK
National Health Service.

Risks to whistleblowers

Through membership of Patients First (patientsfirst.org.uk) I have met many genuine whistleblowers, who raised serious
concerns about patient safety and suffered detrimental treatment and lost their
jobs. Achieving a just outcome for whistleblowers in such cases is usually
impossible because of inequality of arms—unemployed whistleblowers with limited
financial resources fight protracted litigation against employers that spend
large amounts of taxpayers’ money on legal costs to conceal patient harm or to
protect senior individuals.

I say “genuine whistleblowers”, because I recognise that there are
some individuals who claim to be whistleblowers only after allegations were
raised about their own conduct. However the converse is more frequently the
case: after whistleblowers raise concerns spurious reasons are found to
discipline or dismiss them. If one looks hard enough one can find a mistake
that can be magnified to make a case to dismiss a whistleblower and claim that
their sacking was unrelated to them raising concerns. I know of cases where NHS
Trusts have employed private detectives to follow a whistleblower, have
secretly searched a whistleblower’s office during a weekend, got the hospital
IT department to give them access to the whistleblower’s work computer when the
whistleblower was on annual leave, and audited a whistleblower’s mileage travel
claim in order to allege that a minor disparity in mileage claimed amounted to
an attempt to defraud the Trust. Whistleblowers are distrusted, because someone
willing to expose concerns about safety or misconduct by a colleague, cannot be
trusted to remain silent when a cover-up “is required” for the sake of the
organisation or out of comradeship. Other NHS organisations will not employ
people who management do not consider team players, because they do not comply
with the Mafia-style “code of omerta”. The people who understand this best are
appointed to sit on regulatory bodies. As a result, those who raise concerns
are also often treated badly by regulators, such as the UK’s General Medical
Council (GMC).

Treatment by regulators

The GMC instructs doctors that they must speak up if they have
concerns about another doctor’s competence or integrity, but also has a
disparagement rule that is used to prevent doctors expressing such concerns. I
chaired a national committee and the committee became concerned about the integrity
of a research publication. On behalf of the committee, I alleged research
misconduct by the authors. The GMC chose to investigate whether I had
disparaged the doctors. After months of investigation I was exonerated, but the
GMC only reluctantly investigated the allegations I raised and found them true.

I have reported a number of doctors to the GMC. My complaints have
resulted in some being removed from the medical register and others received
lesser sanctions or “advice about future conduct”. I know that the GMC makes it
difficult to complain. The GMC’s initial response is almost invariably that
they will not consider the case. A complainant needs to know that they then
need to get into a legal argument with the GMC to point out the flaws in its decision.
I have gone through this process in cases when the GMC initially said that
there was no case to answer, but eventually removed the doctors from the
medical register. If the GMC reconsiders the case, the complainant must provide
all the evidence: in one case I had to provide more than 32,000 pages of
documents, which was onerous. The GMC also threatened me, the complainant, with
a High Court action.

To understand the machinations and conflicts of interest that
exist at the GMC, it may help to consider a case that I reported. Cardiologist
Dr. Clive Handler was suspended from the Medical Register for embezzling money
from a charitable research fund after I reported him to the GMC (Wilmshurst
2007). The medical director and Trust Board of the hospital where he worked
agreed a settlement with him provided he left quietly. It included the Trust
agreeing a payment to Handler and agreeing to conceal his fraud from both the
police and the GMC. The remarkable thing was that the medical director who drew
up the agreement was Professor Peter Richards, who was a senior member of the
GMC. Richards was Chair of the Professional Conduct Committee—the GMC’s
disciplinary body. He scheduled himself to chair Handler’s hearing. He had to
stand down on the morning of the hearing when the GMC’s own lawyers objected
because of his conflict of interest. The GMC refused to act against Richards
for concealing Handler’s misconduct and let him return to chairing disciplinary
hearing after the case. Would a judge who concealed criminal conduct be allowed
to remain on the bench?

Risk of legal action

A whistleblower may also have to deal with defamation claims. They
are very difficult to defend in the United Kingdom. In 1982, when I refused a
bribe from Sterling- Winthrop to falsify research findings with their drug,
amrinone, I was threatened with legal action (Wilmshurst 2007). I published
data to show that amrinone was ineffective and unsafe. In 1984, Sterling-
Winthrop told the United States Food and Drug Administration that there were so
many life-threatening side effects with the drug that they had ceased to
research or market it. In 1986, I discovered that Sterling- Winthrop were
selling amrinone over the counter in parts of Africa and Asia, though it was
considered too dangerous to have on a doctor’s prescription in Europe and North
America. I worked with Oxfam to get proof, which was taken to the World Health
Organization. Sterling-Winthrop was finally embarrassed into withdrawing
amrinone worldwide.

In 2007, when I was co-principal investigator in the MIST Trial, I
expressed concern at a scientific meeting that the trial data presented was
inaccurate and incomplete. The sponsor of the trial, NMT Medical, which made
the medical device used in the trial, sued me for libel and slander (Wilmshurst
2012). I stuck to my claims, and they sued me three more times. The claims
lasted nearly four years and my legal costs exceeded £300,000. The claims ended
when NMT went into liquidation (Wilmshurst 2012). I got Circulation to correct a scientific paper containing false data and a new
version of the paper was published (Dowson 2008). I had refused to be a
co-author, but the other co-principal investigator in the MIST Trial was first
author, and he was suspended from the Medical Register for dishonesty (Dyer
2015). To get that outcome took six years of effort on my part.

I have received threats of legal action from a number of doctors
that I reported to the GMC, but all withdrew their threats when told what
evidence I would present in court. I was threatened with legal action twice by King’s
College London when I exposed the cover-up of the misconduct of surgeon, A K
Banerjee (Wilmshurst 2016). He was suspended from the Medical Register for a
year in 2000 for research fraud after I reported him first. He got back onto
the register for three weeks and I told the GMC that they had failed to deal
with his financial misconduct and poor clinical skills. He was struck off the
register, but he was allowed back on in 2008. He was awarded an MBE “for
services to patient safety” in 2014. I raised objections with MPs and the
Cabinet Office and the award was forfeited two months later. It is pertinent
that when the Health Honours Committee decides to award a national honour to a
doctor, they check with the GMC to see whether there is any reason why the
honour should not be awarded. That did not work in the case of Banerjee.

And on it goes

The low esteem of NHS management for whistleblowers was brought
home to me personally when I applied for a Gold Clinical Excellence Award at
the time of renewal of my Silver Award (Clinical Excellence Awards are presented
to consultants working in the NHS who perform over and above their role; the
higher awards —silver and up—are decided on a national basis). I was not given
a Gold, but soon afterwards received an anonymous message that my application had
not been dealt with fairly. I appealed, and during the long process discovered
that my regional sub-committee had been allowed to nominate four applicants for
Gold Awards. My application had the third highest score, but the sub-committee
nominated the doctor with the fifth highest score in my place. During the
appeals process the Advisory Committee on Clinical Excellence Awards (ACCEA )
disclosed documents. I discovered that ACCEA asked the medical vice-chair of
the regional sub-committee to explain why I had not been nominated despite my
score. She made a series of false statements about me, and said that the
committee felt that exposing research fraud was not a valid contribution. The
doctor with the fifth highest score, who the regional sub-committee preferred,
was a consultant gynaecologist who was allowed to continue to practise after
being placed on the Sex Offenders Register for accessing child pornography. The
appeal panel stated that the comments of the regional vice-chair about me and
my application were “completely untrue” and upheld my appeal, but ACCEA did not
give me a Gold Award. The medical vice-chair whose statements about me were
found to be “completely untrue” was appointed to be a medical member of the
General Medical Council (GMC). From this I inferred that many senior people in
the NHS prefer a convicted paedophile to a whistleblower.

Conclusion

But perhaps NHS whistleblowers should not complain. I have
investigated research misconduct in other countries. In one, four
whistleblowers said that they had received death threats for exposing research
misconduct by a well connected doctor. My experiences lead me to believe that
in healthcare those who raise concerns are often treated far worse than the
dishonest people they expose.

Described
in Private Eye as the godfather of NHS whistleblowers, Peter Wilmshurst is a member
of the Committee on Publication Ethics, of Patients First and of Health Watch.
He was awarded the Health Watch Annual Award in 2003 “for courage in
challenging misconduct in medical research”, and was the first recipient of the
BMJ Editor’s Award in 2012 “ for persistence and courage in speaking truth to
power”.

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Although healthcare workers have a responsibility to raise concerns about patient safety and unethical or illegal conduct, if they do so they are often treated

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